FedEx Off the Hook for Alleged Pot Misdelivery

(CN) – FedEx is not liable for a marijuana misdelivery that left the frightened recipient fending off strangers at her door looking for the package, the 1st Circuit ruled. The Dec. 30 decision from the Boston-based federal appeals court recites the events from the summary judgment record, in the light most favorable to the plaintiff, Maryangela Tobin. It says a FedEx employee had used a printed label, mistakenly showing the Tobin’s Plymouth, Mass., home address in the “To” section, covering the handwritten address in the same city, “L. Tobin, 21 Standish Ave.” The street where Tobin lived also began with S, and she lived at No. 21, according to the ruling. Tobin says a FedEx courier delivered to the package, from “R. Mason” in Eureka, Calif., with priority overnight shipping in October 2012. She and her 11-year-old daughter allegedly opened the package to find two vacuum-sealed bags of marijuana. When Tobin called the police, they told FedEx to withhold any information regarding the actual delivery address from anyone who might inquire about the package, according to the complaint. Tobin says the day the package arrived, a woman identifying herself as Sue Mason called FedEx, stating that she was expecting a package that she had not received, supplied the tracking number, and requested the address to which the package had been delivered, the complaint states. Mason later called a second time, claiming that the package had been misdelivered and that she would simply retrieve it herself, Tobin says. That same day, a man allegedly came to Tobin’s door, asking whether she had received a package, while two men sat inside a car parked in her driveway. Tobin says she slammed the door shut and called the police again. In her lawsuit, Tobin accused FedEx of mislabeling and misdelivering the package, and of wrongfully disclosing her address to the sender or intended recipient. The complaint alleged invasion of privacy, emotional distress and negligence. FedEx removed the case from state court, and a federal judge granted it summary judgment after finding Tobin’s claims pre-empted by the Airline Deregulation Act. The 1st Circuit affirmed Tuesday, tossing aside the claim that FedEx disclosed Tobin’s address to a third party after the package was delivered to her home. “This argument will not wash,” Judge Bruce Selya wrote for the three-judge panel. “What the plaintiff characterizes as evidence amounts to nothing more than a laundry list of possibilities and hypotheticals. Although the policies relied on by the plaintiff make it possible that some unknown FedEx agent at some unknown time disclosed or confirmed the delivery address to a third party, the plaintiff has not pointed to a shred of competent evidence adequate to elevate her surmise from the realm of the possible to the realm of the probable. Speculation about mere possibilities, without more, is not enough to stave off summary judgment. Here, there is no more: conjecture about customer service scenarios does not bridge the gap.” The court rejected Tobin’s claim that her common-law claims survive, despite the Airline Deregulation Act, because she and her children were strangers to the transaction. “Even though accuracy in labeling and shipping is a service goal currently dictated by the market and one that FedEx has chosen to pursue through its policies and procedures, the demands of the market could change at any time,” Selya wrote. “FedEx’s services must be largely free from state regulation, yet state enforcement of FedEx’s current policies and procedures could impermissibly lock particular services into place. With this in mind, the market’s potential continuous ebb and flow requires preemption of the plaintiff’s common-law claims.”